265 Mass. 310 | Mass. | 1928
This is a petition to establish the truth of exceptions. The material facts are as follows: On January 13, 1915, Amoz Smith, hereinafter called the petitioner, filed a petition in the Land Court to register a large tract of land in Edgartown on the island of Martha’s Vineyard. On March 20,1915, the Attorney General on behalf of the Commonwealth entered his appearance and filed an amended answer in that court. On March 22, 1915, George D. Flynn of Fall River in the county of Bristol filed an answer therein and appeared as an adverse claimant. The Land Court allowed a motion of the petitioner for jury issues, and on April 14,1915, framed an issue which was sent to the Superior Court for the county of Dukes County and which was filed
Time for filing motion for new trial was extended ten days from May 2,1919. On May 10,1919, the respondent Flynn filed the motion for new trial which follows: “And now comes the respondent George D. Flynn and moves that the verdict be set aside and a new trial granted, (a) Because the verdict is against the evidence and the weight of the evidence, (b) Because the verdict is against the law. (c) Because the verdict was rendered on inadequate instructions, (d) Because the verdict does not give a clear, definite answer to the issue submitted to the jury, (e) Because the verdict is vague, indefinite and confusing, (f) Because the verdict finds adverse possession of an indefinite part and of an indefinite interest, (g) Because the verdict finds adverse possession of the whole interest in a part of the estate and an undivided interest in another part, (h) Because the respondent was compelled to go to trial in the absence of the trial counsel.” This motion was denied on October 30, 1920, and the respondent on that day filed a request for rulings (1) “The verdict is vague and indefinite and should be set aside”; (2) “On all the evidence the verdict is vague and uncertain and should be set aside”; and (3) “The instruction about the effect of the petitioner’s testimony in the other law-suit was erroneous . . . and is a sufficient reason for setting aside the verdict.” Exceptions to the denial of the requested rulings were taken, and a bill of exceptions was filed November 13, 1920, and one on November 22, 1920.
The time for filing exceptions taken at the trial on the issue to the jury had been extended until July 1, 1919, and again until September 1, 1919. The exceptions saved at the trial were filed August 6, 1919. The petitioner was duly notified
This rule, like all rules of court duly made, “has the force of law, and is binding upon the court, as well as upon parties to an action, and cannot be dispensed with to suit the circumstances of any particular case,” Thompson v. Hatch, 3 Pick. 512, 516, Cram v. Moore, 158 Mass. 276; “and such rules are to be respected and enforced.” Farnham v. Lenox Motor Car Co. 229 Mass. 478, 481. As matter of law the respondent George D. Flynn knew that the bills of exceptions were without force as such until they were allowed by the trial judge, and he also, as matter of law, knew during all the years after the bills of exceptions were filed in the Superior Court of Rule 54 of that court. With this knowledge he remained inert. His executrix now claims to have his exceptions allowed, if true bills, because he never received the notice which the rule requires shall be given by the clerk of the Superior Court to the parties interested and to the
The burden of proof is upon the excepting party to show that the clerk .of court did not perform the duty of notification, if it be claimed, as here, that the exceptions do not fall within the rule because there was a failure so to notify. There is nothing in the record which discloses that docket entries are kept or are required to be kept of the notification which the rule directs the clerk to send. There is every inference that the clerk discharged his duty. The fact that the respondent George D. Flynn did not receive a notification from the clerk is not sufficient to overcome the presumption that in fact a notice was sent by the clerk in obedience to the duty imposed on him by the rule. The present respondent has hot sustained the burden of proving that the clerk did not discharge that duty.
Petition denied.